⦿ CASE SUMMARY OF:
Eugene Nnaekwe Egesimba v. Ezekiel Onuzuruike (2002) – SC
– Res Judicata;
Eugene Nnaekwe Egesimba
(2002) 15 NWLR (Pt.791) 466;
(2002) 9 10 S.C 1;
⦿ LEAD JUDGEMENT DELIVERED BY:
E. O. AYOOLA, J.S.C.
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– Mr. Nnodum;
* FOR THE RESPONDENT
– Mr. Okoroafor;
⦿ FACT (as relating to the issues)
The plaintiff’s (Appellant) case was that the land in dispute was owned and farmed by his ancestor, one Obom, from whom it descended to him by inheritance through several of Obom’s descendants. He relied on several acts of ownership and possession such as farming, building, raising families and burying their dead on the land, amongst other acts. The plaintiff alleged that he was still farming on the land when the defendant seized it from him sometime in 1976.
The defendant’s (respondent) case on the other hand was that the land in dispute was his, also by inheritance, it having descended to him from one Okorie, through his father, one Onuzuruike. The kernel of his case was that his grandfather, one Egwim, gave the land to one Onyebueze, to build upon on condition that Onyebueze would pay tribute and that the land would revert to the owner in the event that Onyebueze vacated it. That event happened in 1938 when plaintiff’s family vacated the land and stopped paying tribute. Consequently, the defendant took possession of the land in 1938 and has since been using it for farming without interruption.
In the High Court of Imo State, judgment was entered on 14th April, 1988, for the plaintiff on his claim against the defendant for declaration of title to land, damages for trespass and injunction. The defendant appealed to the Court of Appeal which on 20th November, 1996 allowed his appeal, set aside the judgment of the High Court and entered judgment dismissing the plaintiff’s claim in its entirety with costs.
The plaintiff has appealed to this court.
1. Whether failure by the appellant to file a reply to the statement of defence amounted to an admission of a grant or relieved the respondent of his duty to prove a grant of the land?
2. Whether the respondent proved a binding customary arbitration in his favour as against the appellant assertion that there was no customary arbitration?
⦿ HOLDING & RATIO DECIDENDI
1. THE SUPREME COURT HELD ISSUE 1 IN FAVOUR OF THE APPELLANT BUT STATED THAT THIS ISSUE IS CONNECTED WITH ISSUE 2 AND ITS’ (THIS ISSUE) VALUE IS TIED TO IT.
i. When a court is faced with the contention that the failure of the plaintiff to file a reply should affect the result of the case the proper approach is first, to enquire whether a reply was essential; and, secondly, if it was, whether evidence of facts which should have been pleaded in the reply had been adduced and admitted. It is a wrong approach, straightaway, as the court below did, to hold that failure to file a reply to a statement of defence not accompanied by a counter claim amounted to an admission.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT AND IN FAVOUR OF THE RESPONDENT.
i. Confining myself to the points raised in argument concerning the appreciation of the evidence concerning the fact of arbitration, I hold that there is no reasonable cause to disagree with the conclusion of the court below that there was such arbitration and that it decided in favour of the defendant.
ii. Once it was found, as the court below the defendant established that he submitted to such proceedings, the issue of voluntariness is established. Neither the plaintiff who, as found by the court below, initiated the arbitration by lodging complaint, nor the defendant who submitted to proceedings has denied the bindingness of the decision. There is ample evidence that the arbitration was in accordance with the custom of the parties and that the arbitrators reached a decision and published their award. The truth of the matter, it seems to me, is that the plaintiff having nailed his case to the mast of a denial of arbitration, without giving himself the leeway of contending by any alternative, that even if there was one it was not valid, left himself with no latitude to contend as vigorously as he may have wanted to, that the arbitration was not binding. Once there was the slightest evidence of the probability of a valid arbitration the point must go in favour of the defendant.
[DISSENTING: Niki Tobi, JSC]
1. ON ISSUE 1, NIKI TOBI AGREED WITH THE LEAD JUDGEMENT.
A new issue to attract a reply must in law be really new in the sense of being brand and fresh. The issue must be really new to the statement of claim in that it was not existing therein and was therefore brought into existence or introduced for the first time in the statement of defence by the defendant. The new issue, both in its content and materiality, must be further and additional to the statement of claim. The mere fact that a defendant states his own side of the case does not necessarily make it new, particularly when the plaintiff has told a contrary story in his statement of claim. In such a situation, the case stated by the defendant amounts to joining issues with the plaintiff and that does not wear the name of a new issue in law. A new issue in my humble view, arises where the plaintiff did not advert to or touch the content of the defendant’s averments in anticipation, and the defendant’s averment was introduced to the pleadings for the first time and therefore unique and novel to his pleadings.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT AND AGAINST THE RESPONDENT.
i. I do not see the legal basis for interfering with the findings of the trial Judge in respect of the evidence of DW 1 and DW2 relating to the contradictions in their evidence. While DW1 gave the 1957 year, DW2 gave the 1976 year as the year the arbitration was held. Between 1957 and 1976 is quite an age. It is an age of 19 years, one year behind or below a score. To say that such an age in the adolescent bracket is not material beats me hollow, and almost hands down. The lower court held that since the appellant admitted the 1976 date in the statement of claim, the contradiction as to whether it was 1957 or 1976 is not material. That may well be so, but the contradiction must certainly shake the authenticity or veracity of the evidence of DW1. That is one vital area that the lower court did not consider, which the trial Judge considered; and properly too. It is in that circumstance that I agree with the learned trial Judge who rejected the evidence of the two witnesses.
ii. Although the burden of proof is generally on the plaintiff, there are other equally competing principles of law. One of such principles of law is that the burden of proof is on the party who alleges the affirmative. Putting it another way, the burden of proof is on the party who will fail if the burden is not discharged. And who is that party in this appeal? He is the respondent, the defendant who alleged that there was arbitration. He must lead evidence to show that the arbitration which he claimed was held was binding on the appellant. There was no such evidence.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
There is a general proposition of law that failure to file a reply to rebut an averment in a statement of defence which does not contain a counter claim is tantamount to an admission. Where the defendant by his pleading sets out a case which cannot be met by mere denial it is a matter of utmost prudence, if not necessity, to file a reply. – E. O. AYOOLA, J.S.C. Egesimba v. Onuzuruike (2002)
I may further add, as held in a number of cases, that a plaintiff is entitled to lead evidence on a point raised in the defendant’s pleading. – E. O. AYOOLA, J.S.C. Egesimba v. Onuzuruike (2002)
When a person of such circumstances as the DW1, a farmer, gives evidence, description of events are of more significance than dates not fixed by reference to any public event in the locality of the person giving evidence. – E. O. AYOOLA, J.S.C. Egesimba v. Onuzuruike (2002)
The four ingredients usually accepted as constituting the essential characteristics of a binding customary arbitration are: (i) voluntary submission of the dispute to the arbitration of the individual or body; (ii) agreement by the parties either expressly or by implication that the decision of the arbitrators will be accepted and binding; (iii) that the arbitration was in accordance with the custom of the parties and (iv) that the arbitrators reached a decision and published their award. – E. O. AYOOLA, J.S.C. Egesimba v. Onuzuruike (2002)
As the defendant, the respondent, was neither present nor represented by counsel at the hearing of the appeal, I make no order as to costs. – E. O. AYOOLA, J.S.C. Egesimba v. Onuzuruike (2002)
Once there was the slightest evidence of the probability of a valid arbitration the point must go in favour of the defendant. – E. O. AYOOLA, J.S.C. Egesimba v. Onuzuruike (2002)
It is now well settled that an appellate court will not lightly set aside findings of fact made by a trial court unless such findings are perverse. – Ogundare, J.S.C. Egesimba v. Onuzuruike (2002)
Litigation is not a game of smartness but one in which the parties must not cunningly but decently and overtly place their cards on the table of justice for purposes of measuring where the pendulum really tilts. Justice in its total practical content is truth in action. And the court has a duty to search for the truth and find it. Justice is not built on technicalities or caricatures. – Niki Tobi, JSC. Egesimba v. Onuzuruike (2002)
An appellate court has not the eagle eyes of the trial court and so must walk on the line of evaluating and overturning the findings of the trial court with utmost caution. This is because the appellate court was not there. It deals with the cold records before it. – Niki Tobi, JSC. Egesimba v. Onuzuruike (2002)
An appellate court must not introduce into a record evidence that is not there and construe the record as if it is there. – Niki Tobi, JSC. Egesimba v. Onuzuruike (2002)
An expert witness is only necessary if by the nature of the evidence, scientific or other technical information, which is outside the experience and daily common knowledge of the trial Judge as Judge of fact, is required. – Niki Tobi, JSC. Egesimba v. Onuzuruike (2002)